IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Joan Lee Ross, et al., :

Plaintiffs, :

v. : Case No. 2:12-cv-743

Home Depot USA Inc., et al., : 

 Magistrate Judge Kemp

 Defendants. :

 

 OPINION AND ORDER

Joan Lee Ross tripped and fell over an extension cord at a

Home Depot store in June, 2012. She filed this action the

following month seeking to recover compensatory damages on a

theory of negligence and premises liability. 

The case is now before the Court to consider two motions,

both filed by Ms. Ross: a motion to compel discovery, and a

motion to amend the complaint. For the following reasons, the

Court will grant Ms. Ross relief on both motions.

I. The Motion to Compel

Ms. Ross’s motion to compel identifies four documents or

categories of documents which she asked for and either did not

get, or only got some but not all of the information she wanted. 

They are:

1. Store Readiness Checklist Reports from January 1, 2012

to July 1, 2012;

2. General Liability Claim Worksheets prepared between June

26, 2008 and July 1, 2012;

3. General Liability Claim Checklist and Claim Activity

Sheet concerning Ms. Ross’s fall; and

4. the Home Depot Asset Protection Guide.

Ms. Ross’s complaints about the production of these documents

include the fact that they have trickled in, that Home Depot has

not always honored the time frame set out in the request, and

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that some have been redacted or withheld altogether due to

assertions of privilege.

Home Depot takes issue, in its response, with the relevance

or discoverability of any of these documents. However, it agreed

to and did produce the first and third categories of documents,

leaving only the second and fourth in dispute. It also claims to

have no documents falling into the second category (General

Liability Claim Worksheets prepared between June, 2008 and July,

2012) but asserts that it has already produced documents about

all manner of slips, trips and falls at the store in question

going back to June, 2010, even if they were not similar to what

happened to Ms. Ross. According to Home Depot, that leaves only

the last document - the Asset Protection Guide - for discussion. 

Ms. Ross’s reply memorandum appears to agree with that

conclusion, so the Court will limit its analysis to the Asset

Protection Guide.

The parties’ respective positions on that Guide can be

summarized in this way. The Guide itself appears to be a manual

developed by Home Depot to address a large number of different

topics, all related to the need for its sales associates to

“follow the Company’s Asset Protection Standards to ensure the

safety and well-being of all associates, customers and vendors.” 

Asset Protection Guide, Doc. 40 (which was filed under seal), at

3. One of the topics discussed in the guide is in-store

displays. Page 56, which Home Depot has produced, addresses the

use of extension cords in such displays, as do pages 86 and 88,

which were also produced. Home Depot contends that the rest of

the Guide contains confidential or trade secret information and

that it is irrelevant to Ms. Ross’s claim. Ms. Ross, pointing

out how long it took her to get just the three pages which refer

to the use of extension cords in displays, questions whether Home

Depot is the best judge of what else within the Guide might be

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relevant. She wants the Guide produced, subject, of course, to

the existing protective order. Home Depot filed it under seal in

order to allow the Court to review it first.

The Court notes, at the outset, that Home Depot has done

nothing to bolster its claim that this document is worthy of

trade secret protection. It has not submitted any evidence about

how it was compiled, how broadly or narrowly it is distributed,

and what steps it takes to keep the information in it

confidential. Under these circumstances, the Court cannot give

much weight to the trade secret claim.

Given the fact that this lack of support for trade secret

protection limits the issue to the relevance of the non-produced

pages of the Guide, the Court’s preferred approach to this kind

of situation is for the objecting party to produce the entire

document for an attorneys’ eyes only review. That allows counsel

to discuss any differences of opinion about whether certain

portions of the document are relevant - a discussion made much

easier by the fact that all of the attorneys are looking at the

same pages of the document - and it usually narrows the issue

down to a few pages about which there may be some disagreement. 

Those few pages can then be submitted to the Court, the Court can

hear each side’s informed argument about why the information is

relevant, and a decision can be made in short order. Forcing the

Court to review the entire document, much of which Ms. Ross’s

counsel might concede is irrelevant, and also to guess at their

theories for why certain pages might relate to her claim, is a

much less efficient way to approach the problem, and also one

that is less likely to produce the correct result.

Having said that, the Court has quickly reviewed the

document and concludes that the introductory pages (pages 2

through 4) are relevant if for no other reason than they explain

the purpose of the document, including the pages already

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produced, and help to put those pages in context. Pages 16 and

17 also seem relevant. Pages 23 and 144 may contain some

relevant information, or may illustrate the absence of some types

of precautions that could be relevant. Just that quick review

illustrates the fact that it is far preferable to let Ms. Ross’s

attorneys see the entire manual and select those pages, if any,

in addition to the ones the Court has highlighted, which might

fit into their theory of the case. It seems likely that they

will not be interested in the vast majority of the information in

the manual, but the Court does not want to preclude them from

making relevance arguments that have not occurred to the Court. 

Consequently, Home Depot will be directed to produce the Guide

for an attorneys’ eyes only review. That review should be

completed within five business days; the parties should then

confer about any additional pages which Ms. Ross’s counsel think

are relevant; and if that does not produce an agreement, the

parties should contact the Court for a conference to resolve any

remaining issues. 

II. The Motion to Amend

The motion to amend is straightforward. Some of the pages

of the Guide which Home Depot produced seem absolutely to

prohibit the use of extension cords in any displays. Also, some

of the checklists they produced do not identify the presence of

this cord as a hazard even though it was present for a number of

days before Ms. Ross tripped and fell. Ms. Ross wishes to add a

claim for reckless conduct. She argues that this evidence was

not produced, despite her request for it, until after the

deadline for moving to amend had passed, so that her motion is

timely.

Home Depot argues, however, that Ms. Ross has been in

possession of similar information since before the deadline

(which was December 1, 2012) passed. In particular, Home Depot

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claims the same information about extension cords was revealed in

the initial disclosures it served in October, 2012. It also

asserts that any evidence in support of a claim of recklessness

is “at best, ambiguous,” Memorandum in Opposition, Doc. 39, at 2,

and that the information from the Guide which she cites to deals

with electrical hazards from the use of extension cords and not

tripping hazards. Finally, it contends that a claim founded on

recklessness or wanton misconduct would not support an award of

punitive damages.

The disclosures to which Home Depot refers are not, to the

Court’s knowledge, part of the record, nor are they attached to

Home Depot’s memorandum. On the other hand, the motion to compel

sets out the time frame for the disclosure of the Guide pages and

how difficult it has been for Ms. Ross to obtain them. The Court

has little difficulty in concluding that Ms. Ross has shown the

required level of diligence to support a relaxation of the

deadline for moving for leave to amend, and that Rule 16(b) is no

barrier to her motion. See, e.g., Deghand v. Wal-Mart Stores,

904 F.Supp. 1218, 1221 (D. Kan. 1995)( “[t]he party seeking an

extension must show that despite due diligence it could not have

reasonably met the scheduled deadlines”).

Turning to the analysis required by Rule 15(a), the Court

notes that Home Depot has not argued that it will be prejudiced

in any concrete way by the proposed amendment. Prejudice to the

opposing party is usually the benchmark for determining whether

to permit an amendment to the pleadings. See Zenith Radio Corp.

v. Hazeltine Research, Inc., 401 U.S. 321 (1971). Home Depot

argues, however, that the evidence does not support a punitive

damage claim and that it should not have to be put to the expense

of either answering this complaint or having to move for summary

judgment on the claim.

Home Depot’s focus on what the evidence may or may not show

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is not particularly relevant to a motion seeking to amend a

pleading. Although futility of a proposed amendment is a ground

on which the Court can deny leave to amend, see Robinson v.

Michigan Consolidated Gas Co., 918 F.2d 579 (6th Cir.1990), the

focus of that inquiry is whether the proposed amended complaint

states a claim upon which relief can be granted and not on

whether the plaintiff will eventually be able to prove that

claim. See Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417,

420 (6th Cir. 2000)(“A proposed amendment is futile if the

amendment could not withstand a Rule 12(b)(6) motion to

dismiss”); see also Duthie v. Matria Healthcare, Inc., 254 F.R.D.

90, 96 (N.D. Ill. 2008)(“matters that cannot be resolved on a

motion to dismiss ... do not preclude an amendment to the

complaint”). 

At least indirectly, Home Depot argues that the proposed

claim for reckless or wanton misconduct and for punitive damages

does not state a claim under Ohio law. It cites to Preston v.

Murty, 32 Ohio St.3d 334, 335 (1987) for the proposition that

“actual malice, necessary for an award of punitive damages, is

(1) that state of mind under which a person's conduct is

characterized by hatred, ill will or a spirit of revenge, or (2)

a conscious disregard for the rights and safety of other persons

that has a great probability of causing substantial harm,” and to

Motorists Mutual Ins. Co. v. Said, 63 Ohio St. 3d 690, 698

(1992), for the related proposition that, following Preston, Ohio

courts simply do not permit punitive damages to be awarded “on

mere reckless behavior.” These appear to be accurate statements

of Ohio law. However, Ms. Ross’s claim, as pleaded in her

proposed amended complaint, is that “Defendant, through its

employees, acted willfully, wantonly, recklessly and maliciously”

and that its conduct “evidenced a conscious and outrageous

disregard for the safety of others ....” Those allegations track

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the Preston standard. Further, as Ms. Ross points out in her

reply, there is case law in Ohio holding that “[p]unitive damages

need not be specially pleaded or claimed” but may be recovered in

any tort case “so long as the evidence presented, in accordance

with plaintiff's claims, warrants their allowance.” Lambert v.

Shearer, 84 Ohio App. 3d 266, 273 (Franklin Co. App. 1992).

Ultimately, it appears to the Court that the question of

whether punitive damages will be an issue in this case will be a

matter likely to be resolved, at least initially, through summary

judgment, when the entire factual record can be presented to the

Court. That has not happened yet, and would not be appropriate

in the context of a motion for leave to amend. Because Home

Depot has not presented any other argument at this point in

support of its opposition to the motion, the motion will be

granted.

III.

For the reasons stated above, Ms. Ross’s motion to compel

(Doc. 31) is granted as follows. Within five business days, Home

Depot shall produce to Ms. Ross’s counsel, for an attorneys’ eyes

only review, the entire Home Depot Asset Protection Guide. 

Counsel shall confer in good faith about what portions of that

guide Home Depot will agree to produce (without, of course,

conceding the ultimate relevance of those portions of the Guide). 

If no agreement is reached, counsel shall promptly contact the

Court to schedule a conference.

The motion to amend (Doc. 34) is also granted. An amended

complaint identical in form and content to Exhibit C attached to

the motion shall be filed within seven days.

/s/ Terence P. Kemp 

United States Magistrate Judge

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